When Can a Judge Look Ahead?
When ordering a parenting plan in a Florida divorce or paternity action, the judge generally must stick to the present. The judge must make determinations based on findings about your child’s present best interests. That means avoiding “prospective based determinations” about your child’s future best interests.
Exception: No Crystal Ball for Events Reasonably Certain to Occur
An exception to this general rule is judges may allow a timesharing plan that applies the child’s best interests, as determined at the final hearing, to an event reasonably and objectively certain to occur at an identifiable time. For such predictable events, judges need no crystal ball.
Without this exception, you’d have to seek permission to modify the parenting plan after changes that inevitably occur in your child’s life, like starting school. Moreover, satisfying the requirements to get modifications isn’t easy. Read more here.
When Is No Crystal Ball is Required?
When events are reasonably certain to occur, a judge may look ahead. For example, in a paternity case, Rivera v. Purtell, 252 So. 3d 283 (Fla. 5th DCA 2018), the trial court mistakenly concluded it couldn’t modify timesharing once the child started kindergarten. That was a future event reasonably certain to occur. Accordingly, the court could order modification of the present 50-50 overnight timesharing, in effect while the parents lived more than 50 miles from each other, to a schedule giving dad majority overnights during the school year. But, if mom moved within 25 miles of dad’s residence by the time their child started kindergarten, the 50-50 schedule would apply.
In the Fifth District’s view, Arthur only prohibits a trial court from predicting a change in a child’s best interests as of some future date or event. In contrast, for other cases, no “crystal ball” is required. Based on the child’s best interests as of trial, the judge can make conclusions about events reasonably and objectively certain to happen at a definite time.
“When crafting a timesharing plan, a trial court must be free to account for reasonably and objectively certain future events. Otherwise, the parties would be required to continuously seek permission from the court after every change that inevitably occurs in a child’s life, like starting school. We decline Mother’s invitation to interpret Arthur’s prohibition so broadly that Florida’s trial courts become de facto parents.”
Conditional Provisions Not Allowed
Amiot v. Olmstead, Case No. 1D20-680 (Fla. 1st DCA May 11, 2021), in which the court struck a conditional provision the trial court included in an order modifying timesharing a condition that, if mom were to relocate back from California to within 60 miles of Bay County Florida, timesharing would revert to the original schedule the parties agreed to in their marital settlement agreement.
Snowden v. Snowden, 985 So.2d 584 (Fla. 5th DCA 2008), in which the trial court rejected a dad’s petition to modify custody and enforce a final judgment of dissolution of marriage that provided custody would change if either parent drank alcohol or took illegal drugs while the kids were in the parent’s custody.
Conditional Provision Allowed: Expected Date Certain Event
Stevens v. Stevens, 929 So.2d 721 (Fla. 5th DCA 2006), in which a planned custody change based on an expected date-certain event, namely, dad’s finishing his tour of duty, enabled the court to modify prospectively timesharing.
Don’t all parenting plans, which govern parents’ future conduct, derive from parents’ or judges’ predictions about future events? For more about predictions, read ahead here.